Mining in the Final Frontier

It all began when aerospace consultant, Gregory Nemitz, claimed he owned an asteroid. In 2003, Nemitz sent NASA an invoice, demanding $0.20 a year for storage of a NASA probe on his asteroid. When NASA refused to pay, Nemitz filed suit against the United States, alleging it had taken his property without just compensation. A federal district court dismissed Nemitz’s suit, ruling that he had failed to prove he had any property rights. The Ninth Circuit affirmed the district court’s dismissal. The Supreme Court has yet to rule on whether a general right to own property exists in space, but this case makes one certain: A property in space right cannot come from simply creating a website and claiming ownership.

Move ahead 13 years and it is no longer solely NASA and other sovereign nations’ space programs parking their spacecraft outside of the earth’s atmosphere. There is a growing space economy being developed through private companies. This new economy includes tourism, exploration and now asteroid mining.

Asteroid mining, if successful, could be extremely lucrative. Valuable minerals such as platinum, palladium and gold could be mined. One of the most valuable resources believed to be available for mining from asteroids, however, is water. Additionally, asteroids may hold all of the components for life and could be a window into the history of the universe while helping to continue to advance science.

As this new economy begins to develop, the question that was faced back in the early 2000s must now be answered: How is outer space ownership going to be regulated? And along with that, are asteroids land or chattel?

Currently there are only two potential sources of law: the 1967 Outer Space Treaty and the Moon Agreement. The Outer Space Treaty provides that space exploration must benefit all countries and that space is open to all for exploration and use. The Moon Agreement plans for an international regime that would govern exploitation of outer space resources, when obtaining the resources is feasible.

However, the United States has not ratified both treaties. Additionally, there are competing interpretations of the Outer Space Treaty. A space law professor, Art Dula, at the University of Houston believes the Outer Space Treaty specifically “permits the ‘use’ of outer space by nongovernmental entities.” On the other side of the argument is an adjunct law professor at Georgetown, Paul Larsen, who says the treaty specifically states that outer space “is not subject to national appropriation by claim of sovereign, by means of use or occupation, or any other means.”

Regardless of which side is correct, there is currently a bill (H.R. 5063) traveling through Congress that, if passed, would apply specifically to asteroids and would assign the ownership of the resources mined to “the entity that obtained such resources.” The American Space Technology for Exploring Resource Opportunities In Deep Space (ASTEROIDS) Act, as it’s called, only applies to mineral rights, thereby somewhat dodging the land/chattel issue.

One member of the International Institute of Space Law, Wayne White, has another idea for how to deal with the growing space economy. He proposes that the United States enact a “Space Pioneer Act” that would cover not only mining law, but also property rights, salvage law, safety-zones and reciprocity provisions. Perhaps the ASTEROIDS Act is a step in that direction.

So, as the technology continues to develop to mine asteroids, the law will travel through congress to answer the question of whether private companies will be able to legally mine the final frontier.